. . . the voluntary disclosure of confidential material to a third party “eliminates whatever privilege the communication may have originally possessed, whether because disclosure is viewed as an indication that confidentiality is no longer intended or as a waiver of the privilege.”
The common interest doctrine is a notable exception to this waiver rule. Generally speaking, it brings within the ambit of the attorney-client privilege confidential communications between a client and the client’s attorney that are divulged by the client to a third party if the client and the third party are engaged in some form of common enterprise.
In re Bank of N.Y. Mellon Corp. Forex Transactions Litig., 2014 U.S. Dist. LEXIS 159069 (S.D.N.Y. Nov. 10, 2014)
When a client disseminates a legal memorandum prepared by its attorneys to contractual partners relating to ERISA compliance responsibilities, is that memorandum protected by privilege in subsequent litigation by third parties? That was the issue at bar in this case.
On June 10, 2009, the bank’s outside legal counsel sent the bank a memorandum pertaining to compliance with ERISA. A bank employee sent the memorandum to representatives of four of the bank’s pension plan’s investment management companies. He asked the recipients to review the memorandum, to confirm that their companies could comply with the advice therein and stated “that compliance with this memo is your responsibility . . .”
In a subsequent ERISA case, certain bank customers alleged that the bank was liable for breaches of fiduciary duties , among other things. The Department of Justice and several other groups of private plaintiffs also sued the bank for civil penalties or alleged damages stemming from its foreign exchange practices.
During the course of the litigation the memorandum aforementioned became the subject of a discovery dispute.
The nub of the dispute is whether the memorandum was protected by the attorney-client privilege or the work product doctrine, notwithstanding that dissemination, by virtue of the common interest doctrine.
The bank argued that the memorandum was “protected from disclosure by the attorney-client privilege and work product doctrine” and that dissemination did not waive the privilege.
Plaintiffs, on the other hand, asserted (1) that the Bank forfeited the protection of the attorney-client privilege when it circulated the memorandum to third parties with whom it shared no common legal strategy and (2) that the Groom Memo is not work product because there is no evidence that it was prepared “in connection with active or contemplated litigation.”